When an assignment of property for the benefit of all the creditors of the assignor is made, the assent of the creditors shall be presumed.
Source: L. 1897: p. 95, § 5. R.S. 08: § 178. C.L. § 6245. CSA: C. 12, § 5. CRS 53: § 11-1-5. C.R.S. 1963: § 11-1-5.
ANNOTATION
Annotator's note. Cases material to § 6-10-105 decided prior to its earliest source, L. 1897, p. 95, § 5, have been included in the annotations to this section.
This section is simply declaratory of preexisting law. Spangler v. Sanborn, 7 Colo. App. 102, 43 P. 905 (1895).
Without it there would be the same presumption of the assent of the creditors. Spangler v. Sanborn, 7 Colo. App. 102, 43 P. 905 (1895).
The presumption of assent contemplated in this section obtains only in cases where no affirmative act on the part of the creditor evidences an intention to repudiate, or not to assent to, the assignment. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
It is a prima facie presumption merely that may be overcome by evidence to the contrary. Thatcher v. Valentine, 22 Colo. 201, 43 P. 1031 (1896).
So it is not compulsory upon a creditor to assent to an assignment made for his benefit in common with other creditors. Beifeld v. Martin, 4 Colo. App. 578, 37 P. 32 (1894).
His right to a proportionate share of the assets depends upon such assent. Beifeld v. Martin, 4 Colo. App. 578, 37 P. 32 (1894).
Creditor's refusal to assent may be inferred if he has knowledge of assignment. The right of any creditor to participate in the benefits of the assignment depends upon his assent to such assignment, and his refusal to assent thereto may be inferred from his acts, but such inference can be drawn only from acts of the creditor done with the knowledge that an assignment had been made, or at least that it was in contemplation. Nat'l Bank of Commerce v. Graham, 16 Colo. App. 498, 66 P. 684 (1901).
Where one has no actual knowledge or notice of the execution of a deed of assignment, even though the deed is filed for record, it follows that one has no constructive notice of the execution of such deed. Nat'l Bank of Commerce v. Graham, 16 Colo. App. 498, 66 P. 684 (1901).
Moreover, this section does not prevent creditors from bringing action against the debtor or require those seeking to participate in the distribution of the estate to stipulate for his discharge. In re Carlson's for Music, Inc. v. Gould, 176 Colo. 172, 489 P.2d 1038 (1971).